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$225,000 Non-Pecuniary Assessment for Chronic and Disabling Conversion Disorder

Written by admin on . Posted in ICBC Psychological Injury Cases, ICBC Spine Injury Cases. 49 Comments on $225,000 Non-Pecuniary Assessment for Chronic and Disabling Conversion Disorder

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for a disabling conversion disorder following a motor vehicle collision.
In this week’s case (Best v. Thomas) the Plaintiff was operating a motorcycle when he was rear-ended by a van.  The Plaintiff suffered a spine injury at C-5 which required surgical correction.  He went on to suffer from a variety of disabling ailments.  Ultimately the Court found these were due to a conversion disorder.  The prognosis for recovery was poor.  In assessing non-pecuniary damages at $225,000 Madam Justice Duncan provided the following reasons:
[139]     I find on a balance of probabilities that the main cause of the plaintiff’s current condition, including the myoclonus, is conversion disorder. I come to this conclusion because of the relative rarity of propriospinal myoclonus and how it can be mistaken for psychiatric problems. The non-anatomical presentation was also persuasive. As early as Dr. Ho’s involvement, a strange kicking motion was noted, which was inconsistent with a neurological cause. Some of the plaintiff’s pain may well be as a result of the surgery on his C5/6 disc; however, the vast majority of his symptoms, in my view, are not organic or structural in cause.
[140]     Diagnosis of cause aside, what I glean from the experts is that nobody predicts anything close to a full recovery for the plaintiff. Dr. Hurwitz posited a 14% possibility of some recovery, though in light of the fact that the plaintiff has already been treated with a wide variety of anti-depressant drugs, this is a very optimistic prognosis. The other experts recommended various interventions in an effort to assist the plaintiff…
[161]     The plaintiff was almost 32 when the accident happened. The original injury was to his C5-6 disc. I find the following facts about the plaintiff’s condition have been established on a balance of probabilities.
[162]     Since the accident, the plaintiff has been in constant pain, notwithstanding an aggressive regime of pain treatment through medication and other therapies. He is disabled from competitive employment. While he can drive and walk, with some difficulty and with the assistance of a cane, he cannot engage in the activities he enjoyed before the accident. In terms of physical activity, he can do little more than walk very short distances and swim. He can no longer work at a job he enjoyed. His emotional suffering is extreme. He has given up hope of being a father and had a vasectomy as he would be unable to engage in play or chase a child. His enjoyment of sexual activity is significantly diminished as he has lost sensation in his penis during intercourse. His family and friends attest to the fact that he is not the same person as before the accident. He no longer laughs and jokes around. He is constantly fatigued. His family and two close friends remain engaged with him but his world has shrunk considerably from his pre-accident social activities and he has essentially lost a healthy, active, social lifestyle. He is not as mentally sharp as he was, whether by virtue of the injury or the associated medications he takes to manage his condition. None of the experts predicted anything remotely approaching a full recovery.
[163]     Taking into account all of the foregoing, as well as the range of cases provided by counsel, I award the plaintiff $225,000 in non-pecuniary damages.
 

$130,000 Non-Pecuniary Assessment For Chronic Pain With Related Heart Palpitations

Written by admin on . Posted in ICBC Chronic Pain Cases, ICBC Psychological Injury Cases. 39 Comments on $130,000 Non-Pecuniary Assessment For Chronic Pain With Related Heart Palpitations

It what is a fairly unusual symptom following motor vehicle related injuries, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for chronic pain with associated heart palpitations.  In this week’s case (Morena v. Dhillon) the Plaintiff was involved in a 2008 collision.  The Defendant admitted fault.  The Plaintiff suffered a variety of injuries which remained symptomatic at the time of trial and were expected to linger into the future, the most unusual of which were heart palpitations.  In assessing non-pecuniary damages at $130,000 Madam Justice Arnold-Bailey provided the following reasons:
[117]     The evidence establishes that she was injured in the accident and as a result developed of the following injuries and conditions as listed by to Dr. Koo:
1.         Soft tissue injuries to the neck, shoulders, arms, lower back and legs with chronic residual sequelae of:
a)         Chronic whiplash injury with mechanical neck pain, myofascial origin, involving the right scalenes, trapezius, supraspinatus, infraspinatus and rhomboids, and left trapezius, levator scapula, rhomboids, supraspinatus, and infraspinatus muscles.
b)         Mechanical low back pain.
2.         Chronic sleep disruption.
3.         Posttraumatic stress disorder.
4.         Severe depression.
5.         Heart palpitations.
[130]     In the present case, prior to the accident, the plaintiff was a vital, energetic 43-year-old wife and mother of two. The extent of her injuries and the ensuing conditions is clearly set out above. She is likely to continue to suffer from pain, depression, PTSD, sleep disruption and potentially heart palpitations in to the future. Her depression is severe and seems to be entrenched. Her pain is severe at times and she requires constant pain medication. Her emotional suffering is great due to her great sadness and regret that she is not able to make the contributions to her family life that she did prior to the accident. Her relationships with family and friends have been negatively affected although her family remains intact. The best evidence is that she is fully disabled from work except for the one hour a day as a lunch supervisor she currently performs during the school year. She remains partially disabled from housework and other physical activities. Her enjoyment of all aspects of her life is significantly reduced. She is prevented by the injuries and their aftermath from living what otherwise was likely to have been a very happy, productive and fulfilling life. She has lost much.
[131]     Considering the range of awards in the authorities provided on behalf of the plaintiff, I find the decisions of Marois and Morlan to be of the most assistance. I award non-pecuniary damages in this case in the amount of $130,000.

$130,000 Non-Pecuniary Assessment for L4/5 Disc Herniation Resulting in Chronic Pain

Written by admin on . Posted in ICBC Chronic Pain Cases, ICBC Psychological Injury Cases, ICBC Spine Injury Cases. 44 Comments on $130,000 Non-Pecuniary Assessment for L4/5 Disc Herniation Resulting in Chronic Pain

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for an L4-5 disc herniation.
In this week’s case (Bains v. Brar) the Plaintiff was injured in a 2008 collision.  The Defendant admitted fault for the collision.  The crash caused a disc herniation which required a bilateral disectomy.  The Plaintiff was left with chronic pain accompanied with depressive symptoms.   In assessing non-pecuniary damages at $130,000 Mr. Justice Cohen provided the following reasons:
[41]         Before the accident the plaintiff was a happy, healthy, socially and physically active person who enjoyed his work as a machinist and looked forward to one day establishing his own machine shop.  Following the accident, he was a very different person.
[42]         There is a consensus among all of the medical experts that the plaintiff has suffered serious debilitating injuries as a result of the accident and that the chronic pain from his physical injuries has led to him suffering from a major depressive disorder.
[43]         In his September 18, 2012 report, Dr. Sahjpaul stated that the plaintiff will have ongoing symptoms on a permanent basis and that he did not anticipate any resolution or improvement.  He opined that the plaintiff would not return to his pre-accident occupation as a machinist, or be able to work in any vocation that required prolonged sitting, prolonged use of a computer or one that required heavy lifting.
[44]         Dr. L. Caillier, a Physical Medicine and Rehabilitation expert, who saw the plaintiff on November 4, 2010, and in follow-up on January 24, April 8, June 17, August 18, and October 20, 2011, opined in her report dated December 1, 2011, that the plaintiff has chronic pain that is soft tissue in nature, involving the neck, upper back, and lower back regions, as well as his posterior shoulder girdle regions.  She also opined that he has mechanical lower back pain.  She reported, “Unless there is a significant improvement in his emotional and psychological wellbeing as well as his sleep and improved management of his physical symptoms, I do not see Mr. Bains working in any occupation, let alone his prior occupation as a machinist.”  She also concluded in her prognosis, “It is my opinion that given the chronicity of his physical symptoms, coupled with his ongoing psychological and emotional symptoms and poor sleep, the likelihood of Mr. Bains achieving a pain-free state is very poor.  It is my opinion that he is likely to have ongoing pain now and into the future and beyond that of the next 12 months.”
[45]         Dr. Lu, whose opinion I accept, stated in his May 31, 2012 report that the plaintiff’s major depressive disorder, though in partial remission, has long term impact on his future risk of relapse and that even with complete relief of pain and return to his previous level of function, the plaintiff has a prolonged episode of major depression.  Dr. Lu opined that the plaintiff now has at least a 30% chance of a relapse over the next 5 years with similar functional impairment strictly from a mental health standpoint…
[77]         When I consider the nature and extent of the injuries suffered by the plaintiffs in the cited authorities, when compared to those suffered by the plaintiff in the case at bar, I find that a reasonable and fair award to the plaintiff for non-pecuniary damages is $130,000.

Physician's Evidence Rejeced for Lack of "An Open Mind" Regarding Collision Related Injury

Written by admin on . Posted in ICBC Chronic Pain Cases, ICBC Psychological Injury Cases, ICBC Spine Injury Cases, Uncategorized.

Adding to this site’s archived judicial comments about expert witness evidence that is judicially rejected, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for an L4/5 disc injury caused by a motor vehicle collision.
In this week’s case (Sekihara v. Gill) the Plaintiff was injured in a 2007 collision.  Although liability was denied the Defendant was found 100% responsible for the crash.   In the course of the trial the Defendant relied on an orthopedic surgeon who blamed some of the Plaintiff’s persisting symptoms not on the collision but instead on “deconditioning, her recent pregnancy and weight gain” and pre-existing conditions.
The Court rejected this evidence finding the plaintiff, who was a former professional athlete, suffered an L4/5 disc injury in the crash which was responsible for her persisting symptoms and assessed non-pecuniary damages at $130,000.  In rejecting the defence medical evidence the Court provided the following criticism:
[160]     On behalf of the plaintiff, it is submitted that Dr. Grypma’s opinion should be given no weight for the following reasons:
1.     He took what can only be described as a cursory history from Ms. Sekihara;
2.     he made a number of editorial comments in the section titled “medical records review” which were not identified as being his own comments;
3.     in that same section he left out salient facts which tended to support Ms. Sekihara’s complaints;
4.     also in that section, if he was unable to read handwriting, he simply left those sections out of his summary without stating that he had done so; and
5.     he was evasive at times in his oral testimony.
[161]     I agree with the plaintiff’s submissions regarding Dr. Grypma.  In his evidence, Dr. Grypma does not appear to have demonstrated an open mind in his examination of and conclusions regarding Ms. Sekihara or to have taken into account the complete medical history.
[162]     Most importantly, Dr. Grypma’s opinion that the enduring complaints of back pain are related to any of the four unrelated conditions is inconsistent with the evidence of Ms. Sekihara and of the objective evidence of the tear of the annulus fibrosis. 
[163]     Ms. Sekihara, as a snowboarder and professional athlete, many times per day for years, would load her spine with at least 3 times her body weight every time she made a jump with no back pain.  I do not accept Dr. Grypma’s evidence that it is coincidental that she suffered back pain immediately following the motor vehicle accident due to degeneration or a previously existing pars defect. 
[164]      It was Ms. Sekihara’s inability to pursue her regular activities due to her back pain which caused the deconditioning, not vice versa.  Ms. Sekihara had ongoing low back pain long before she became pregnant.  The pars defect was congenital and the degenerative changes longstanding. 
[165]     The characterisation of the low back injury is the major issue.  I prefer the evidence of Dr. Hershler who diagnosed it as a disc injury at L4/5.  His conclusions are based on his interpretation of the imaging, his examinations, and on Ms. Sekihara’s reporting of her symptoms, both pre and post-accident.

Damages Must Flow From Aggravations of Pre-Existing Injuries

Written by admin on . Posted in ICBC Psychological Injury Cases.

Reasons for judgement were released this week by the BC Court of Appeal confirming that judges must award damages when pre-existing conditions are aggravated in part due to a tortious cause.
In this week’s case (Sangha v. Chen) the Plaintiff was involved in a 2005 intersection crash.  Both the Plaintiff and Defendant were at fault for the incident.   The trial judge assessed damages on the basis that the Plaintiff sustained a two year soft tissue injury.  At the time of trial the Plaintiff had on-going chronic pain which was rooted in chronic depression which pre-dated the accident.  However, the Court found that the collision physical injuries “aggravated his previous depressed state” but did not assess damages for the on-going worsened depression finding that the Plaintiff “would have suffered his current symptoms in any event“.
In finding that this was in error and that damages needed to be assessed to reflect the collision caused aggravation of pre-existing depression the BC Court of Appeal provided the following reasons:
[26]        With respect, it does not appear to me to have been open to the judge to find, as she did in para. 110 that Mr. Sangha “would have suffered his current symptoms, in any event”, having found earlier in that same paragraph that “his physical injuries aggravated his previous depressed state”. Further, her conclusion that Mr. Sangha would have suffered his current symptoms appears to be inconsistent with her view expressed in para. 111 that “at most the injuries suffered in the accident aggravated the plaintiff’s mood symptoms”. Given that the “mood symptoms” are exactly those symptoms encompassed within the pre-existing condition of depressive illness, para. 111 appears to allow for attribution of at least a portion of Mr. Sangha’s current symptoms to the physical injuries sustained in the accident.
[27]        I recognize that one must not parse a trial judge’s reasons for judgment with too much exactitude, and so I have turned to the evidence relied upon by the trial judge, the medical report of Dr. Riar, in her determination that all of Mr. Sangha’s current malady derives from his pre-existing condition. Nowhere in that report does Dr. Riar entirely dissociate the current condition of Mr. Sangha from the accident, so as to support the judge’s conclusion that Mr. Sangha would have suffered his current symptoms, in any event. While Dr. Riar clearly considered that the preponderance of Mr. Sangha’s current symptoms derive from the pre-existing mental illness, Dr. Riar also said “I feel that the accident in question aggravated his mood symptoms, which in turn fed into his pains, and they have continued like that all along” and “The only thing the accident did was complicate his situation somewhat more”. Questioned about this, Dr. Riar affirmed this view of the reflection to at least a small degree, of the physical injuries in Mr. Sangha’s current malady:…
[29]        The correct approach to pre-existing conditions is discussed in Athey v. Leonati, [1996] 3 S.C.R. 458, under the rubric of “crumbling skull:
            The so-called “crumbling skull” rule simply recognizes that the pre-existing condition was inherent in the plaintiff’s “original position”. The defendant need not put the plaintiff in a position better than his or her original position. The defendant is liable for the injuries caused, even if they are extreme, but need not compensate the plaintiff for any debilitating effects of the pre-existing condition which the plaintiff would have experienced anyway. The defendant is liable for the additional damage but not the pre-existing damage: Cooper-Stephenson, supra, at pp. 779-780 and John Munkman, Damages for Personal Injuries and Death (9th ed. 1993), at pp. 39-40. Likewise, if there is a measurable risk that the pre-existing condition would have detrimentally affected the plaintiff in the future, regardless of the defendant’s negligence, then this can be taken into account in reducing the overall award: Graham v. Rourke, 74 D.L.R. (4th) 1; Malec v. J. C. Hutton Proprietary Ltd., 169 C.L.R. 638; Cooper-Stephenson, supra, at pp. 851-852. This is consistent with the general rule that the plaintiff must be returned to the position he would have been in, with all of its attendant risks and shortcomings, and not a better position.
[30]        I also refer to Blackwater v. Plint, 2005 SCC 58, [2005] 3 S.C.R., 2005 SCC 58.:
[78]      It is important to distinguish between causation as the source of the loss and the rules of damage assessment in tort. The rules of causation consider generally whether “but for” the defendant’s acts, the plaintiff’s damages would have been incurred on a balance of probabilities. Even though there may be several tortious and non-tortious causes of injury, so long as the defendant’s act is a cause of the plaintiff’s damage, the defendant is fully liable for that damage. The rules of damages then consider what the original position of the plaintiff would have been. The governing principle is that the defendant need not put the plaintiff in a better position than his original position and should not compensate the plaintiff for any damages he would have suffered anyway: Athey. …
[31]        I respectfully conclude that the judge erred in failing to reflect, in her damages award, her conclusion of fact that “the physical injuries aggravated his previous depressed state” and “the accident did cause at least some of” the psychological symptoms. To what extent the damages should have been adjusted to account for these conclusions I cannot say. That question is one particularly within the purview of a trial judge. Accordingly, in my view, the award of damages must be set aside and the issue of quantum of damages must be remitted to the Supreme Court of British Columbia for fresh assessment.

Defence Psychiatrist Rejected for Basing Opinion on "Facts That Are Wrong"

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Chronic Pain Cases, ICBC Psychological Injury Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases.

In my continued effort to highlight judicial scrutiny of expert witnesses, reason for judgement were released last week by the BC Supreme Court, Kamloops Registry, rejecting an expert psychiatric opinion.
In last week’s case (Moritz v. Schmitz) the Plaintiff was injured in a 2007 collision.  She was 17 years old at the tine and “was a healthy teenager“.  The collision caused chronic soft tissue injuries along with a worsening of pre-existing psychological difficulties.  The Court awarded $80,000 for the Plaintiff’s non-pecuniary damages.
In the course of trial the Defendant called a psychiatrist who provided an opinion that the collision was not the cause of the Plaintiff’s aggravated pscyhological difficulties.  In rejecting this opinion Madam Justice Gropper provided the following critical comments:
[70]         Dr. Solomons goes on to suggest that, in his opinion, it is “most likely that the course of her psychiatric difficulties after the accident was related to stressors unrelated to the accident”, referring to matters that occurred prior to the motor vehicle accident. He then concludes that the plaintiff would have experienced the same symptoms even if the accident had not occurred. Again, Dr. Solomons does not provide a foundation for his opinion that the problems Ms. Mortiz faced before the accident are of greater significance than those she faced because of the accident. He was aware that the plaintiff suffered from physical injuries but he does not turn his mind to whether those injuries may have affected her psychiatric functioning.
[71]         Dr. Solomons does not explain his emphasis on pre-accident events. This same observation in respect of Dr. Solomon’s emphasis on pre-accident events was made by Mr. Justice Willcock in Jokhadar v. Dehkhodaei, 2010 BCSC 1643 at para 135:
Further, there is no reason, in my view, to regard stressors other than the car accident as more compelling or predominant. Dr. Solomons, in reaching that conclusion, ignored clear evidence of the significance of the accident.
[72]         I also note that Dr. Solomons’ final paragraph under the “Opinion” section of his report is based on “facts” that are wrong. He says Ms. Moritz was “psychiatrically disabled before the accident and was not working at the time of the accident.” He fails to note that she was 17 years old and in grade 12 at the time of the accident. She was not psychiatrically disabled from working. He says that “[s]he had no psychiatric requirement for time off work as a result of the accident since she was already on long term psychiatric disability … .” Again, she was not off work because of her psychiatric disability before the accident; nor was she on long-term psychiatric disability. In all of the circumstances, I am unable to accept Dr. Solomons’ opinion.

The Death of the LVI Program?

Written by admin on . Posted in ICBC Hip Injury Cases, ICBC LVI (Low Velocity Impact) Cases, ICBC Psychological Injury Cases.

I have it on good authority that ICBC’s Low Velocity Impact Program is being largely scrapped.  Instead of the conventional LVI denials for collisions with under $2,000 of vehicle damage, I am informed that ICBC will now only deny claims under the LVI policy in cases where vehicle damage is limited to “scuffs, scrapes or scratches“.  Anything beyond this minimal paint damage will be adjusted on overall merits.  I have not yet seen a written copy of this shift in policy but if I do I will be sure to share it here.
With this introduction out of the way, the latest judicial nail in the LVI coffin was released this week.  In this week’s case (Midgley v. Nguyen) the Plaintiff was involved in a 2004 collision.  He suffered various injuries and sued for damages. ICBC argued this was a Low Velocity Impact and that the plaintiff was not injured.  Madam Justice Dardi soundly rejected this argument finding the Plaintiff suffered from a torn labru in his right hip along with psychological injuries.  She assessed non-pecuniary damages at $110,000.  In dismissing the LVI Defence the Court provided the following critical comments:
[174]     The overarching submission of the defence was that “this was a nothing accident”. The tenor of the defence submission was that, since there was no damage to Mr. Midgley’s motor vehicle, he could not have sustained the damage he alleges in the 2004 Accident.
[175]     There is no legal principle that holds that if a collision is not severely violent or if there is no significant damage to a motor vehicle, the individual seated within that vehicle at the time of the impact cannot have sustained injuries. The authorities clearly establish that, while the lack of vehicle damage may be a relevant consideration, the extent of the injuries suffered by a plaintiff is not to be measured by the severity of the force in a collision or the degree of the vehicle’s damage. Rather, the existence and extent of a plaintiff’s injuries is to be determined on the basis of the evidentiary record at trial: see Gordon v. Palmer (1993), 78 B.C.L.R. (2d) 236.
[176]     As I referred to earlier, the defence led no opinion evidence to support the assertion that the force of the impact in this case was incapable of producing the injury alleged by Mr. Midgley. I accept Mr. Midgley’s evidence regarding his body position at the time of impact and that, as far as he was concerned, the collision was jarring. In any case, there is expert medical evidence, which I find persuasive, that supports the relationship between the 2004 Accident – and, in particular, Mr. Midgley’s body position at the time of impact – and the existence of his injuries.
[177]     On the totality of the evidence, I am persuaded that Mr. Midgley sustained an injury in the 2004 Accident, in spite of the fact that his vehicle apparently was not damaged.

Non-Pecuniary Damages Discussed for Physical Injuries Complicated by Pre-Existing Psychological Issues

Written by admin on . Posted in ICBC Psychological Injury Cases.

It is a well worn principle that you take your victim as you find them when assessing damages for personal injuries in BC.  It is equally true that a defendant is not responsible for compensating an injured party beyond the injuries that they have caused.  Reasons for judgement were released this week by the BC Supreme Court, Kamloops Registry, dealing with these principles in the face of chronic pre-existing psychological injuries.
In this week’s case (Carson v. Henyecz) the Plaintiff was injured after being struck by a vehicle being driven by her mother.  The Plaintiff sustained injuries that “essentially recovered…within a year of the accident”.  The Plaintiff, however, had a pre-existing “borderline personality disorder” and this caused for a prolonged recovery and with other complicating factors.  The Court grappled with this pre-existing injury, its effect on recovery and further on the fact that the Plaintiff’s symptoms at the point of trial would be largely similar even absent the collision.  In assessing non-pecuniary damages at $90,000 Mr. Justice Powers provided the following reasons:
[111]     I find that Ms. Carson had essentially recovered from her physical injuries within a year of the accident. I accept that she continued to have some pain for at least another year and still occasionally suffers pain from the injury. However, from a physical point of view she has made an excellent recovery. I am not satisfied that the shoulder complaints relate to the accident or were caused by the accident. In November of 2008, when she began to notice shoulder pain, the doctor’s evidence indicates that she had a full range of motion and was quite strong.
[112]     I do find that her pre-existing psychological or borderline personality disorder was a factor in the impact this accident had on her. These injuries and the circumstances of the accident had a greater impact on Ms. Carson than they would on somebody without her pre-existing psychological problems.
[113]     I also find that the necessity for narcotic medication to deal with the pain immediately after the accident and for at least a short time after also complicated and delayed Ms. Carson’s efforts to free herself from her prior addiction and abuse of pain medication. I find that the psychological impact of this accident also complicated her efforts to free herself from the pain medication and made it more difficult for her to do so.
[114]     However, the accident is not the cause of Ms. Carson’s ongoing problems. I am satisfied her ongoing problems, both psychological and physical, are as a result of her prior psychological problems. Given her complicated psychological history, I find that the accident has become the focus of and not the cause of her complaints. It is difficult to be precise about when the accident was no longer a significant contributing cause to her complaints. However, I am satisfied that within two to three years of the accident, and certainly by the time of the trial, the accident was no longer a significant contributing cause. Similar to the case of Wilson and the cases cited in that decision that I have referred to in paras. 105 and 106 of my reasons, Ms. Carson’s pre-existing condition was so dominant in her life and, based on the evidence I have heard, would have continued to dominate her life whether this accident occurred or not. Essentially she appears to be back to her pre-accident condition and it cannot be said that the accident is the cause of her present condition.
[115]     In considering all of the above, I find that the appropriate damage award for non-pecuniary damages is $90,000.00.

$110,000 Non-Pecuniary Assessment for Psychological Injuries Following Fatal Collision

Written by admin on . Posted in ICBC Psychological Injury Cases, ICBC PTSD Cases, Uncategorized.

Adding to this site’s database of archives caselaw addressing psychological injuries, reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, assessing damages following psychological injuries following a severe motor vehicle collision.
In last week’s case (Rizzotti v. Doe) the Plaintiff was injured in a 2005 head-on collision.   The crash was significant killing the driver of the offending vehicle.  Fault was admitted.  The Plaintiff suffered from psychological injuries following this crash including PTSD, depression and an adjustment disorder.
The Plaintiff’s injuries were aggravated in two subsequent collisions.  All three cases were heard together and damages were assessed globally.  In assessing non-pecuniary damages at $110,000 Mr. Justice Tindale provided the following reasons:

]The plaintiff was clearly involved in a serious head-on collision in 2005. She sustained injuries of a physical nature and a psychological nature. The evidence is clear that the first accident caused the majority of the injuries to the plaintiff while the other two accidents exacerbated her condition.

[76]The medical evidence is clear that the physical injuries were caused by the accidents. The medical evidence is also clear that her psychological injuries were caused by the accidents.

[77]Dr. Anderson diagnosed the plaintiff as having ongoing depressive symptoms consistent with a diagnosis of chronic adjustment disorder with depressed mood. He also diagnosed the plaintiff with having chronic post-traumatic stress disorder in partial remission.

[78]The psychologist, Dr. Kettner, also diagnosed her with having post-traumatic stress disorder. Both doctors Anderson and Kettner had the advantage of personally interviewing the plaintiff.

[79]Dr. Levin agreed with the diagnosis of adjustment disorder with depressed mood however he did not feel that the plaintiff had post-traumatic stress disorder. Dr. Levin only reviewed the medical documentation and did not interview the plaintiff.

[80]I prefer the evidence of Dr. Anderson and Dr. Kettner over that of Dr. Levin as they were able to personally interview the plaintiff.

[81]The evidence in this case clearly indicates that the plaintiff suffered physical injuries which are long-standing and chronic in nature as well as a serious psychological injury.

[82]The defendants have not discharged their onus that the plaintiff failed to mitigate her losses by failing to take medication. The evidence does not disclose on a balance of probabilities that she was prescribed antidepressant medication. Also, with regard to the plaintiff declining to have injections in her hip, there is no evidence that this delayed her recovery. She also gave evidence that she was afraid of injections, which I accept

[83]The appropriate award for non-pecuniary damages is $110,000.00.

$90,000 Non-Pecuniary Assessment for Chronic PTSD

Written by admin on . Posted in ICBC Psychological Injury Cases, ICBC PTSD Cases.

Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, assessing damages for chronic psychological difficulties which arose as a result of a collision.
In last week’s case (Foubert v. Song) the Plaintiff was injured in 2007 collision caused by the Defendant.  The Plaintiff was 60 years old at the time and 65 years old at the time of trial.  The collision caused some soft tissue injuries which made a good recovery.  Unfortunately the collision also caused Post Traumatic Stress Disorder which continued to affect her at the time of trial and led to her early retirement.  In assessing non-pecuniary damages at $90,000 Mr. Justice Punnett provided the following reasons:

[107] The evidence of the plaintiff’s co-workers, son and friends indicates that the plaintiff, prior to the accident, was a high energy and enthusiastic teacher and that those traits carried through into her day to day life. They have all had the opportunity to observe and deal with her both before and after the accident.

[108] I am satisfied that as a result of the accident the plaintiff has gone from an independent, energetic teacher with an active and varied social life to an individual who is no longer able to work as a teacher, particularly of young children, who can no longer tolerate large groups nor the over stimulation of a variety of social situations. Her intention to keep working past 65 years of age has been thwarted as a result of this motor vehicle accident.

[109] Given the age of the plaintiff and the fact that it is now 5 years after the accident I am satisfied that the plaintiff while having recovered from the soft tissue injuries and to a certain extent from the PTSD has not, as noted by Dr. Shane completely recovered. Her present and future level of recovery is evidenced by Dr. Shane’s opinion that her status occupationally is unlikely to change and that she remains unable to return to teaching art.

[110] Having observed the plaintiff, her evidence of the effect of the accident and the corroborating evidence of the lay witnesses, as well as the medical evidence, I am satisfied that the plaintiff will not return to employment.

[111] Taking into account the evidence in this case as well as the authorities cited I am satisfied that an appropriate award for pain and suffering and a modest amount for loss of housekeeping is $90,000.

[112] Given my findings with respect to the pre-accident complaints there shall be no reduction for them.